Commonwealth v Thompson [1960] HCA 28; (1960) 104 CLR 48 (19 May 1960)

HIGH COURT OF AUSTRALIA

THE COMMONWEALTH v. THOMPSON [1960] HCA 28; (1960) 104 CLR 48

Workers' Compensation - High Court

High Court of Australia
Dixon C.J.(1), Fullagar(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employees - Disease - Due to nature of employment in &which employee engaged - Heart disease - Effect of nature and volume of work arising from employment as Deputy Commissioner of Taxation - Commonwealth Employees' Compensation Act 1930-1956 (Cth), ss.9, 10 (1) (b).

High Court - Claim for compensation by Commonwealth employee - Appeal from District Court (N.S.W.) to High Court - Jurisdiction - Source and nature - The Constitution (63 & 64 Vict. c. 12), s. 73 (ii) - Judiciary Act 1903-1955 (Cth), s. 39 (2) (b) - Commonwealth Employees' Compensation Act 1930-1956 (Cth), s. 20 - District Courts Act 1912-1955 (N.S.W.), s. 142.

HEARING

Sydney, 1959, December 15, 16; 1960, May 19. 19:5:1960
APPEAL from the District Court, Sydney, New South Wales.

DECISION

1960, May 19.
The following written judgments were delivered : -
DIXON C.J. This appeal comes from the District Court exercising federal 1930-1956. On reconsideration of s. 142 of the District Courts Act 1912-1955 (N.S.W.) and the wide definition of "action" in s. 3 I think that, notwithstanding the doubt I expressed on the point in The Commonwealth v. Wright (3), the appeal given is wide enough to embrace a proceeding under s. 20 of the Commonwealth Employees' Compensation Act 1930-1956 for the purposes of s. 39 (2) (b) of the Judiciary Act 1903-1955, if s. 39 (2) applies, as it was said to do by the Court in Goward v. The Commonwealth [1957] HCA 60; (1957) 97 CLR 355, at pp 360, 361 . But whether the appeal comes by that course of procedure or directly under s. 73 (ii) of the Constitution and O. 70 of the Rules of the High Court, the appeal is a full appeal upon fact and law: see The Commonwealth v. Matheson [1955] HCA 24; [1955] HCA 24; (1955) 93 CLR 403 , per Williams J. (1955) 93 CLR, at p 408 and Wishart v. Fraser [1941] HCA 8; (1941) 64 CLR 470, at p 480 . (at p51)

2. The respondent is the widow of F. A. S. Thompson who at the time of his death was Deputy Commissioner of Taxation responsible for the administration in New South Wales of the Income Tax and Social Services Contribution Assessment Act of the Commonwealth. He died on 9th July 1958 from what appears to have been a coronary occlusion. As head of the department in Sydney he attended on that day a gathering of the staff to bid farewell to a senior officer on the occasion of that officer's leaving the service, and as he was ending a speech he made he collapsed and died. The medical report made after a post-mortem examination said no more than that the cause of death was disease of the heart, coronary. He had experienced the symptoms of angina pectoris for some time and his condition had been diagnosed early in 1957 as that of coronary sclerosis. (at p51)

3. Section 10 (1) of the Commonwealth Employees' Compensation Act 1930-1956 provides that where (a) . . . (b) the death of an employee is caused by a disease and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to the Act, be liable to pay compensation in accordance with the Act as if the disease were a personal injury by accident arising out of or in the course of his employment. By s. 4 (1) "disease" is defined to include any physical or mental ailment, disorder, defect or morbid condition, whether of a sudden or gradual development and also to include the aggravation, acceleration or recurrence of a pre-existing disease. The widow's claim was based upon this provision. The claim was rejected by the Delegate of the Commissioner for Employees' Compensation but on appeal his Honour Judge Lloyd upheld it. As I understand the reasons for judgment given by the learned judge, he considered that the stress and worry of the burdensome and responsible office which the deceased held had aggravated or accelerated the disease which caused his death and that accordingly the disease was due to the nature of his employment. Counsel for the respondent in supporting the decision put it a little differently. The view he urged was that the disease which caused the death was coronary sclerosis and an occlusion and that all that it was necessary to show in addition was that the employment in which the deceased was engaged was of such a nature that it was capable of aggravating or accelerating disease of that kind, if not of giving rise to it, even though the employment had not in fact aggravated or accelerated the disease in the particular case of the deceased. (at p52)

4. In view of the history of the provision not only in this legislation of the Commonwealth but in the English legislation from which it is more or less derived, and perhaps also in view of sub-s. (2), (3) and (4) of s. 10, it may be true as counsel contended that the provision does not intend that it must appear in every case that the actual employment in which the employee was engaged by the Commonwealth in fact accelerated or aggravated the disease or caused or contributed to the contraction or progress of the disease. See Blatchford v. Staddon and Founds (1927) AC 461 ; Smith v. Mann [1932] HCA 30; (1932) 47 CLR 426 ; Eaton v. George Wimpey & Co. Ltd. (1938) 1 KB 353 and Dow v. Commissioner for Railways (1952) 26 WCR (NSW) 73 , per Street C.J. (1952) 26 WCR (NSW), at p 76 , per Owen J. (1952) 26 WCR (NSW), at p 77 , per Herron J. (1952) 26 WCR (NSW), at p 81 . But if that be so, nevertheless it is at least necessary that the disease or its aggravation or acceleration or recurrence be attributable in fact to the employee's having followed the employment to the nature of which it is due, if not in the service of the Commonwealth then in that of some earlier employer. There was of course in this case no earlier employer of the deceased ; it thus comes back to its being attributable to the employment in the service of the Commonwealth. Counsel's way of putting the case for the respondent must therefore fail. (at p53)

5. But if one returns to the more direct grounds upon which her case must accordingly be put, they appear insufficient in point of fact to support it. (at p53)

6. In the first place I do not think that the "nature" of the employment of a Deputy Commissioner of Taxation or of any lower office which at any relevant time the deceased may have held is shown to tend to cause or to contribute to the contraction, aggravation or acceleration of coronary disease or any of its consequences. (at p53)

7. In the next place I do not think that the deceased's death or the disease that caused it was in fact in any way brought about or accelerated or influenced by his employment. (at p53)

8. In the case of The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 I have given reasons which discuss the meaning and operation of s. 10 (1) considered with the definition of "disease" and I shall not go over the same ground again. (at p53)

9. I think that the appeal should be allowed and the order of the District Court discharged. (at p53)

FULLAGAR J. For the reasons which I have given in The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 I am of opinion that this appeal must be allowed. Here again there was, in my opinion, no personal injury by accident within the meaning of s. 9 of the Act. And, so far as s. 10 is concerned, although the death of the respondent's husband was undoubtedly caused by a disease, that disease was not shown to be due to the nature of the employment in which he was engaged. (at p53)

2. With regard to the source and nature of the jurisdiction of this Court to entertain the appeal, I do not desire to say more than that I agree with what has been said by the Chief Justice. (at p53)

TAYLOR J. This is an appeal from an order of a District Court judge who awarded compensation to the respondent pursuant to the Commonwealth Employees' Compensation Act 1930-1956 in respect of the death of her husband on 9th July 1958. The deceased's death was caused by coronary disease and compensation was awarded on the basis that his death was caused by a disease which was due to the nature of the employment in which he was engaged by the Commonwealth (s. 10). As has been pointed out recently in other cases the word "disease" in this provision must be read in the light of the definition of that expression contained in s. 3 - a task not unattended by difficulties though it is not necessary in this case to discuss them specifically. (at p54)

2. The matter came before the learned District Court judge pursuant to s. 20 of the Act which provides that any person affected by any determination of the Commissioner under the Act may within a specified time, appeal to a county court (which term includes a district court) against the determination and that the court shall have jurisdiction to hear and determine the appeal. The Delegate of the Commissioner had previously rejected the respondent's claim and she appealed pursuant to this section. I mention these matters because in the course of the argument before us the contention was somewhat belatedly raised that the appeal to this Court was incompetent. The foundation for this contention was s. 39 (2) of the Judiciary Act 1903-1959 (Cth) which provides that the several courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it and, thereafter, imposes a condition or restriction by the use of the following words : "(2) (b) Wherever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court". That condition or restriction, it is said, is applicable here and since no appeal lay to the Supreme Court from the decision of the learned District Court judge, there is no appeal to this Court. In answer to this proposition it was, however, argued that the condition or restriction is attached only to the investing of federal jurisdiction accomplished solely by force of s. 39 (2). That is to say, it is attached only to the federal jurisdiction with which within the limits of their several jurisdictions that section invests the Courts of the States. Then, it is said, since s. 20 of the Commonwealth Employees' Compensation Act 1930-1956 confers an additional though, albeit, federal jurisdiction, s. 39 (2) (b) cannot be read as a relevant condition or restriction or as qualifying the right of appeal which, otherwise, is granted by s. 73 (ii) of the Constitution. There may be some force in this argument but it is doubtful whether the decision in Goward v. The Commonwealth (1957) 97 CLR 355 leaves the question open. However it is unnecessary to pursue the point because the view which the learned District Court judge took of s. 10 makes it necessary that special leave to appeal should be granted. (at p55)

3. Approaching the case on this basis it should first of all be observed that the case bears a striking resemblance to the recently decided case of The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 . As in that case, and for like reasons, I am satisfied that consideration of the evidence should not lead to the conclusion that the work which the deceased's employment required him to perform played any part in accelerating the progress of the disease which had afflicted him for such a long time or in bringing about his death on 9th July 1958. But even if it did, the reasons given in Bourne's Case [1960] HCA 26; (1960) 104 CLR 32 make it quite clear that his death was not caused by a disease which was due to the nature of the employment in which he was engaged. I should, perhaps, add that it was not suggested and, indeed, there was no ground upon which it could have been suggested, that the deceased's death resulted from personal injury by accident arising out of or in the course of his employment. (at p55)

4. Accordingly I am of opinion that the appeal should be allowed and the order of the learned District Court judge discharged. (at p55)

MENZIES J. In this case his Honour Judge Lloyd upon an appeal under s. 20 of the Commonwealth Employees' Compensation Act from a determination of the Commissioner for Employees' Compensation found that the death of F. A. S. Thompson, who, at the time of his death, was Deputy Commissioner of Taxation in New South Wales, was caused by the acceleration or aggravation, due to his work over the years in the Taxation Department, of the coronary heart disease from which he was suffering, and that his widow was entitled to compensation under s. 9 of the Act by virtue of s. 10 thereof on the footing that the deceased's death was caused by a disease due to the nature of his employment by the Commonwealth. From the award that his Honour made the Commonwealth has appealed to this Court. (at p55)

2. For the reasons which I have given in my judgment in The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 I consider that, even if the evidence did establish that the responsibilities of the offices which he occupied in the Taxation Department did aggravate or accelerate the coronary disease from which he was already suffering, that disease which eventually caused his death was not due to the nature of his employment, and to those reasons I have nothing to add. The coronary disease which brought about the death of the deceased was not a disease due to the nature of the deceased's employment in the sense that the disease was incidental to that class of employment so that it can be attributed to service therein - to use the language of Viscount Sumner in Blatchford v. Staddon and Founds (1927) AC 461, at p 470 which was adopted by Starke J. in Smith v. Mann [1932] HCA 30; (1932) 47 CLR 426, at p 443 . (at p56)

3. On the question of the jurisdiction of this Court to entertain the appeal, I agree with the judgment of the Chief Justice. Accordingly, I consider that this appeal should be allowed. (at p56)

WINDEYER J. I agree that this Court has jurisdiction to entertain this appeal and that it is a full appeal on the facts and the law. The question then turns on the effect of s. 10 of the Act. (at p56)

2. Was the death of the deceased caused by a disease due to the nature of the employment in which he was engaged? As I said in The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 , s. 10 relates to what are commonly called occupational diseases. The definition of "disease" gives a wide meaning to that word; but it does not otherwise affect the meaning of the expression "disease due to the nature of the employment". For a disease to be due to the nature of the employment in which the employee was engaged, the employment must be such that it ordinarily tends to cause that disease. That is to say, it must be a property of that form of employment to produce that disease - so that contracting that disease can be said to be a natural result of being engaged in that employment. Other suggested interpretations of the expression seemed to me to assume that the words "nature of" may be disregarded and the expression treated as periphrastic. H. W. Fowler observed in Modern English Usage that the word "nature" is "a favourite with the lazy writers who prefer glibness and length to conciseness and vigour". We should not assume that the draftsman of the Act was in that class. Moreover, the history of the provision shows clearly enough that the word "nature" is used here with a purpose and in its proper sense. That disposes of the matter, because coronary disease is not a disease due to the nature of the work of tax collectors. Coronary ailments are, unfortunately, widespread in the community. Taxation officers are not more afflicted by them than are persons in other occupations. (at p56)

ORDER

Appeal allowed with costs.

Order of the District Court at Sydney discharged. In lieu thereof order that the appeal to the District Court be dismissed with costs.